[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1699 Engrossed in Senate (ES)]
109th CONGRESS
1st Session
S. 1699
_______________________________________________________________________
AN ACT
To amend title 18, United States Code, to provide criminal penalties
for trafficking in counterfeit marks.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; FINDINGS.
(a) Short Title.--This Act may be cited as the ``Stop
Counterfeiting in Manufactured Goods Act''.
(b) Findings.--The Congress finds that--
(1) the United States economy is losing millions of dollars
in tax revenue and tens of thousands of jobs because of the
manufacture, distribution, and sale of counterfeit goods;
(2) the Bureau of Customs and Border Protection estimates
that counterfeiting costs the United States $200 billion
annually;
(3) counterfeit automobile parts, including brake pads,
cost the auto industry alone billions of dollars in lost sales
each year;
(4) counterfeit products have invaded numerous industries,
including those producing auto parts, electrical appliances,
medicines, tools, toys, office equipment, clothing, and many
other products;
(5) ties have been established between counterfeiting and
terrorist organizations that use the sale of counterfeit goods
to raise and launder money;
(6) ongoing counterfeiting of manufactured goods poses a
widespread threat to public health and safety; and
(7) strong domestic criminal remedies against
counterfeiting will permit the United States to seek stronger
anticounterfeiting provisions in bilateral and international
agreements with trading partners.
SEC. 2. TRAFFICKING IN COUNTERFEIT MARKS.
Section 2320 of title 18, United States Code, is amended as
follows:
(1) Subsection (a) is amended by inserting after ``such
goods or services'' the following: ``, or intentionally
traffics or attempts to traffic in labels, patches, stickers,
wrappers, badges, emblems, medallions, charms, boxes,
containers, cans, cases, hangtags, documentation, or packaging
of any type or nature, knowing that a counterfeit mark has been
applied thereto, the use of which is likely to cause confusion,
to cause mistake, or to deceive,''.
(2) Subsection (b) is amended to read as follows:
``(b)(1) The following property shall be subject to forfeiture to
the United States and no property right shall exist in such property:
``(A) Any article bearing or consisting of a counterfeit
mark used in committing a violation of subsection (a).
``(B) Any property used, in any manner or part, to commit
or to facilitate the commission of a violation of subsection
(a).
``(2) The provisions of chapter 46 of this title relating to civil
forfeitures, including section 983 of this title, shall extend to any
seizure or civil forfeiture under this section. At the conclusion of
the forfeiture proceedings, the court, unless otherwise requested by an
agency of the United States, shall order that any forfeited article
bearing or consisting of a counterfeit mark be destroyed or otherwise
disposed of according to law.
``(3)(A) The court, in imposing sentence on a person convicted of
an offense under this section, shall order, in addition to any other
sentence imposed, that the person forfeit to the United States--
``(i) any property constituting or derived from any
proceeds the person obtained, directly or indirectly, as the
result of the offense;
``(ii) any of the person's property used, or intended to be
used, in any manner or part, to commit, facilitate, aid, or
abet the commission of the offense; and
``(iii) any article that bears or consists of a counterfeit
mark used in committing the offense.
``(B) The forfeiture of property under subparagraph (A), including
any seizure and disposition of the property and any related judicial or
administrative proceeding, shall be governed by the procedures set
forth in section 413 of the Comprehensive Drug Abuse Prevention and
Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that
section. Notwithstanding section 413(h) of that Act, at the conclusion
of the forfeiture proceedings, the court shall order that any forfeited
article or component of an article bearing or consisting of a
counterfeit mark be destroyed.
``(4) When a person is convicted of an offense under this section,
the court, pursuant to sections 3556, 3663A, and 3664, shall order the
person to pay restitution to the owner of the mark and any other victim
of the offense as an offense against property referred to in section
3663A(c)(1)(A)(ii).
``(5) The term `victim', as used in paragraph (4), has the meaning
given that term in section 3663A(a)(2).''.
(3) Subsection (e)(1) is amended--
(A) by striking subparagraph (A) and inserting the
following:
``(A) a spurious mark--
``(i) that is used in connection with
trafficking in any goods, services, labels,
patches, stickers, wrappers, badges, emblems,
medallions, charms, boxes, containers, cans,
cases, hangtags, documentation, or packaging of
any type or nature;
``(ii) that is identical with, or
substantially indistinguishable from, a mark
registered on the principal register in the
United States Patent and Trademark Office and
in use, whether or not the defendant knew such
mark was so registered;
``(iii) that is applied to or used in
connection with the goods or services for which
the mark is registered with the United States
Patent and Trademark Office, or is applied to
or consists of a label, patch, sticker,
wrapper, badge, emblem, medallion, charm, box,
container, can, case, hangtag, documentation,
or packaging of any type or nature that is
designed, marketed, or otherwise intended to be
used on or in connection with the goods or
services for which the mark is registered in
the United States Patent and Trademark Office;
and
``(iv) the use of which is likely to cause
confusion, to cause mistake, or to deceive;
or''; and
(B) by amending the matter following subparagraph
(B) to read as follows:
``but such term does not include any mark or designation used
in connection with goods or services, or a mark or designation
applied to labels, patches, stickers, wrappers, badges,
emblems, medallions, charms, boxes, containers, cans, cases,
hangtags, documentation, or packaging of any type or nature
used in connection with such goods or services, of which the
manufacturer or producer was, at the time of the manufacture or
production in question, authorized to use the mark or
designation for the type of goods or services so manufactured
or produced, by the holder of the right to use such mark or
designation.''.
(4) Section 2320 is further amended--
(A) by redesignating subsection (f) as subsection
(g); and
(B) by inserting after subsection (e) the
following:
``(f) Nothing in this section shall entitle the United States to
bring a criminal cause of action under this section for the repackaging
of genuine goods or services not intended to deceive or confuse.''.
SEC. 3. SENTENCING GUIDELINES.
(a) Review and Amendment.--Not later than 180 days after the date
of enactment of this Act, the United States Sentencing Commission,
pursuant to its authority under section 994 of title 28, United States
Code, and in accordance with this section, shall review and, if
appropriate, amend the Federal sentencing guidelines and policy
statements applicable to persons convicted of any offense under section
2318 or 2320 of title 18, United States Code.
(b) Authorization.--The United States Sentencing Commission may
amend the Federal sentencing guidelines in accordance with the
procedures set forth in section 21(a) of the Sentencing Act of 1987 (28
U.S.C. 994 note) as though the authority under that section had not
expired.
(c) Responsibilities of United States Sentencing Commission.--In
carrying out this section, the United States Sentencing Commission
shall determine whether the definition of ``infringement amount'' set
forth in application note 2 of section 2B5.3 of the Federal sentencing
guidelines is adequate to address situations in which the defendant has
been convicted of one of the offenses listed in subsection (a) and the
item in which the defendant trafficked was not an infringing item but
rather was intended to facilitate infringement, such as an anti-
circumvention device, or the item in which the defendant trafficked was
infringing and also was intended to facilitate infringement in another
good or service, such as a counterfeit label, documentation, or
packaging, taking into account cases such as U.S. v. Sung, 87 F.3d 194
(7th Cir. 1996).
Passed the Senate November 10, 2005.
Attest:
Secretary.
109th CONGRESS
1st Session
S. 1699
_______________________________________________________________________
AN ACT
To amend title 18, United States Code, to provide criminal penalties
for trafficking in counterfeit marks.